In Voting Rights, Scalia Sees a “Racial Entitlement”

Justice Antonin Scalia, during oral arguments at the Supreme Court on Wednesday, said that the Court had to rescue Congress from the trap of being afraid to vote against a “racial entitlement”—the “entitlement” in question being the Voting Rights Act. (“Even the name of it is wonderful: the Voting Rights Act. Who is going to vote against that in the future?”) Scalia said that not alone but, it appears, with four other votes for overturning a key part of the act: Section Five, which relies on a combination of history and recent bad behavior to designate certain states and jurisdictions as having to get “pre-clearance” from the Department of Justice or from a federal court before they, say, abruptly change voting hours or redraw districts or change their voter-I.D. requirements. Most of them are in the South, but not all of them are. The Court’s conservatives seem to think this is terribly unfair. “Is it the government’s submission that the citizens in the South are more racist than citizens in the North?” Chief Justice John Roberts asked. “But if — if Alabama wants to have monuments to the heroes of the Civil Rights Movement,” Justice Anthony Kennedy, the swing vote, asked, would it be “better off doing that if it’s an own independent sovereign or if it’s under the trusteeship of the United States Government?” Is the idea that statues are only going up now because people are looking, or that the Voting Rights Act is nothing but a monument?

But Scalia’s argument—and he was as much presenting a case as asking questions—was particularly striking. The Voting Rights Act was passed in 1965 as a follow-up to the Civil Rights Act of 1964, a series of bills enacted after a legislative struggle and the murder of civil-rights workers who tried to register voters. It passed the Senate 77–19, and the House 333–85. Some of its provisions, though, including Section Five, would expire unless renewed, as they have been several times—most recently in 2006, after a debate and discussion of possible amendments. It passed the Senate 98–0, and the House 390–33. Scalia thought that the widening margin spoke to a sorry situation. “But that’s—that’s a problem that I have,” he said, after the Solicitor General Donald Verrilli said that Congress had made a judgment that voting rights still needed to be protected. “This last enactment, not a single vote in the Senate against it. And the House is pretty much the same.” Scalia continued:

Now, I don’t think that’s attributable to the fact that it is so much clearer now that we need this. I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.

Scalia is saying, in effect, that the Voting Rights Act gave a gift—a “racial entitlement”—to black people, and the result has been that “the normal political processes” don’t work. What is “normal,” in this view? Scalia goes on:

I don’t think there is anything to be gained by any Senator to vote against continuation of this act. And I am fairly confident it will be reënacted in perpetuity unless — unless a court can say it does not comport with the Constitution. You have to show, when you are treating different States differently, that there’s a good reason for it. That’s the— that’s the concern that those of us who — who have some questions about this statute have. It’s — it’s a concern that this is not the kind of a question you can leave to Congress. There are certain districts in the House that are black districts by law just about now. And even the Virginia Senators, they have no interest in voting against this. The State government is not their government, and they are going to lose — they are going to lose votes if they do not reenact the Voting Rights Act.

What does Scalia mean when he says that “even the Virginia Senators” are under the constraint of knowing that “the State government is not their government”? The notion that more members of Congress now than in 1965 might support the Voting Rights Act because it does good (and still necessary) work does not seem to have occurred to him. Is the job of the Court to be Congress’s mind-reading, minority-sidelining alter ego?

This can’t just be written off as Scalia being Scalia. Justice Sonia Sotomayor, with, according to the Times, “an edge in her voice that left little doubt she was responding to Justice Scalia’s statement,” asked Bert Rein, the lawyer for Shelby County, Alabama, which brought the suit, “Do you think that the right to vote is a racial entitlement in Section 5?” (Both she and Elena Kagan were tough questioners.) When he acknowledged—as well he might—that the Fifteenth Amendment protects all, she said, “I asked a different question. Do you think Section 5 was voted for because it was a racial entitlement?” Rein replied that insofar as Congress was “reacting” to race discrimination,

So to that extent, as the intervenor said, yes, it was intended to protect those who had been discriminated against.

Protection against discrimination, it would seem, now counts as an entitlement—a loaded word these days. The notion that everyone is harmed, and our system is corrupted, if any group is denied the vote seems to be missing. If the integrity of the franchise is an entitlement, it’s a common one, and not a racial one. Or so one would think. A few minutes later, Rein added,

As everyone agrees, it’s been very effective, Section 5 has done its work. People are registering and voting and, coming to Justice Scalia’s point, Senators who see that a very large group in the population has politically wedded themselves to Section 5 are not going to vote against it; it will do them no good.

Here, again, is the idea that the Court has to stand in for politicians who, thanks to Section Five, have to answer to black voters.

Both sides agreed that there would be a time when the pre-clearance provisions in Section Five would not be necessary—when attempts to keep minorities away from the polls would be rare enough that other enforcement measures would suffice. One of Section 5’s best constitutional defenses, it would seem, is that it has what are referred to as “bail-in” and “bail-out” provisions, which is why some northern jurisdictions are covered, like Port Chester, New York, and some Southern ones aren’t. (Shelby County is challenging Section Five as a whole, not its own inclusion specifically. Meanwhile, Charles Blow argued in the Times that the scope should be expanded, in part because of the challenges Hispanic and Asian-American voters may face.) And yet, the section, based on the arguments yesterday, seems likely to be overturned.

Given the fight over voter suppression in the 2012 Presidential campaign, there would seem to be a reasonable case that voting rights are not an exotic issue but a central one. Scalia and his colleagues, though, seem to be more worried about another possible wrong. The role of the Court, Scalia seems to be saying, is to step in when members of Congress are scared of being called racist. Scalia does not seem to be afraid of that.

Illustration by Philip Burke.

Amy Davidson is a New Yorker staff writer. She is a regular Comment contributor for the magazine and writes a Web column, in which she covers war, sports, and everything in between.